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Woods & Brangwin, PLLC

632 Valley Mall Parkway
East Wenatchee, Washington 98802

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Drive Sober, Get Nailed
Written by Steven Woods
Friday, 01 January 2010 08:00
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We have all seen the commercials.  “Drive hammered, get nailed,” the stern-voiced trooper announces.  Or the one where the driver is literally sitting in a car full of beer which pours out of the window when the police officer approaches to ask the driver if he has been drinking.  And you cannot drive down a highway without seeing a sign warning, “Legal Limit .08.”  So if you are not hammered, and are not above the legal .08 limit, you are safe, right?



Many drivers are quite unpleasantly surprised to find out they can be charged with a DUI even if they take the state-mandated breath test and blow under the legal limit.  How exactly is this possible?

In Washington State, a driver is presumed to be impaired by alcohol if his BAC is above a .08 within 2 hours of driving.  But this is a one-way street.  A driver is NOT presumed to be unimpaired if he or she blows under a .08.  So blowing a .07 or lower does not get you off the hook.  If the police officer has already arrested you and taken the time to drive you to the police station for a breath test, most officers have already made up their mind that you are, in fact, Driving Under the Influence of alcohol.  The officer is very likely to charge you with a DUI despite your favorable breath test results.

Think of it this way.  Before the breath test was invented people got arrested for and convicted of DUI.  These people were convicted based upon the officer’s observation of their driving, speech, physical appearance, admissions of drinking, results of the field sobriety tests, etc.  A breath test was not necessary to get a conviction.  This is still true today.  Blowing above the legal limit is just another way for the prosecution to prove guilt, but this is not the only way.

I have seen people in Chelan County charged with DUI who had a breath test as low as .03, and no evidence of any other drug use besides the small amount of alcohol they had consumed.  (You can be charged with a DUI for being under the influence of drugs, or drugs and alcohol, not just alcohol, but that discussion is for another day.)  While I strongly believe that charging people for DUI with such low BAC levels is highly improper, it does happen.  When it happens, there are a number of defenses that can be raised.  By all means do not roll over and play dead if this happens to you.  Plead not guilty when you first appear in court at your arraignment and then seek out a good DUI lawyer to help you fight the charge.  An experienced DUI lawyer will have seen this before, will share your outrage over the charge, and will work hard for you to see that justice is done.



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